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Eight days in January: Is ‘Roe’ doomed?

Editor’s note: Tanick’s article was filed from Washington, D.C., where he attended the women’s march and the presidential inauguration.

Stare decisis “is not, to be sure, an imprisonment of reason. But neither is it whimsy.”

U.S. v. International Boxing Club, 348 U.S.243, 348 (1955)

(Frankfurter, J., dissenting)

WASHINGTON — An eight-day span here in the nation’s capital was a momentous period for pro-choice Minnesotans and others around the nation who support abortion rights and for the anti-abortion forces that oppose them here and elsewhere.

It started on Friday, Jan. 20, with the inauguration of Donald Trump as the 45th president, a ritual preceding by a day the Women’s March on Washington, which focused on reproductive rights, among other matters. The following day, Sunday, Jan. 22, was the anniversary of the historic decision of the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), which gave constitutional protection to abortion-seekers and constrained restrictions on the practice.

The event in Washington was emulated by marches in many Minnesota cities, including St. Paul, Duluth and Rochester. The capstone of the period was scheduled for Friday, Jan. 27 — the 44th annual March for Life, proclaimed by anti-abortion supporters as the world’s largest annual pro-life event of its kind.

The confluence of these four days may have a significant impact on the future of the reproductive rights throughout the country, testing the vitality or fragility of the Roe decision and its subsequent variations. Minnesota jurists, personalities, and case law are at the heart of the debate whether Roe is doomed or destined to survive.

Falling & fervor

These developments are occurring at a time when abortion rates are falling and anti-abortion fervor is rising. A report earlier this month by a research group supporting choice showed rates at 14.6 per 1,000 women last year, issued a few days before the eight-day inauguration span began. That is the lowest level since Roe. Meanwhile, a bill has been introduced in the Iowa Legislature to allow women who have abortions to sue their providers for post-abortion emotional distress, which may be the first of many restrictive measures to be proposed in state and federal legislative bodies this year.

Although abortion was not a major issue in the past election campaign, it played a discernible role. Donald Trump clearly indicated in the second presidential debate that he would impose a “litmus test” on Supreme Court nominees, favoring those who oppose abortion rights. As president-elect he expanded on that by calling for reversal of the Roe ruling and allowing each state to decide its own abortion laws, the situation that existed prior to Roe. As for women who live in states that would not allow abortions, the president-elect cavalierly declared that they can go to another state to obtain one, presuming they have the ability, mobility, money and wherewithal to do so.

Because of Republican majorities in the Senate, which acts upon Supreme Court nominations, coupled with some like-minded Democrats, the likelihood of placing anti- Roe justices on the Supreme Court is high.

Pro-life activists gathering for their yearly protest in the nation’s capital were buoyed by that prospect, along with the possibility of restrictive legislation. They recall Trump’s remark during the campaign that there should be some sort of “punishment” for women who have abortions, a position he subsequently retreated from a bit.

Fragile or formidable?

Many of the president’s supporters and other abortion foes hope that this is one campaign promise he keeps. For some, certitude transcends hope. Scott Fishbach, executive director of Minnesota Citizens Concerned for Life (MCCL), began the New Year by prophesying that “Roe v. Wade will fall. It’s just a matter of time.” He repeated that mantra at the State Capitol in St. Paul when his group coordinated the Minnesota counterpart to the anti-abortion march in the nation’s capital, the previous Sunday, Jan. 22, on the 45th anniversary of the Roe decision.

But Roe might not be as fragile as it seems on the surface. Written by Minnesota’s Justice Harry Blackmun, the decision held that a woman’s right to an abortion is constitutionally protected by the implicit right of privacy in the Ninth Amendment, applicable to the states through the Due Process clause of the post-Civil War 14th Amendment. Some friendly critics, such as current Supreme Court Justice Ruth Bader Ginsburg, a strong pro-choice jurist, who replaced Blackmun on the bench two decades later, would have preferred to see the right anchored to the Equal Protection provision of the 14th Amendment.

Her ambivalence about which constitutional provision should underlie abortion rights pales in comparison to the unflinching opposing view, exemplified by one of Trump’s leading candidates to fill the current vacancy on the court, Judge William Pryor of the ultra-conservative 11th Circuit. He has made his contrary view quite clear, calling Roe an “abomination of constitutional law.”

A single new jurist will soon fill the nearly yearlong vacancy due to the death last February of Antonin Scalia, whom the President regards as the ideological “mold” for his judicial choices. Because the late justice was an ardent abortion foe, his replacement by a like-minded jurist probably will not bring about any immediate change in the ideological balance of the court or the law that it dispenses. However, over time, another new justice or two, especially if replacing aged stalwarts in the liberal wing of the tribunal, including the 83 year-old Ginsburg herself, could bring about dramatic alterations to abortion rights.

But reversal of Roe may not happen so easily. The justices in general, particularly conservative ones whom the new president might nominate, are prone to follow precedent in order to maintain the stability and predictability of the law. Their visceral reluctance to reverse existing legal doctrines may impede overhauling Roe.

Departing decisions

There have been, to be sure, memorable occasions when the high court has declined to follow precedent, perhaps most notably in Brown v. Board of Education case, 347 U.S. 483 (1954), outlawing racial segregation in public schools. The unanimous decision written by then-new Chief Justice Earl Warren, which sparked the civil rights movement, overturned the 58 year-old ruling of Plessy v. Ferguson, 163 U.S. 537 (1896), which allowed racial segregation over a lone dissent.

Other noteworthy decisions of departing from precedent, although rare, run the gamut. For example, another well-known Warren Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), granting the right to counsel in criminal cases, overruled the denial of the right three decades earlier in Betts v. Brady, 316 U.S. 455 (1942). Another World War II era case that fell as precedent, Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), allowing public schools to compel students to say the Pledge of Allegiance, lasted only three years before being overruled in W. Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

More recently, but with less notoriety, the high court reversed itself within a decade in Garcia v. San Antonio Met. Transit Authority, 469 U.S. 528 (1985), allowing application of the Federal Fair Labor Standards Act (FLSA) to local units of government. Nine years earlier the high court had said that was an impermissible extension of congressional authority impairing the rights of states under the 10th Amendment. National League of Cities v. Usery, 426 U.S. 833 (1976).

To top it off, the flipping of precedent by the Supreme Court in its decision 2½ years ago upholding the right of “same sex” marriage, Obergfell v. Hodges, 13 S.Ct. 25 (2015) overruled its prior view that the issue lacked “substantial” constitutional status. The earlier decision was to dismiss on appeal a ruling by the Minnesota Supreme Court rejecting a challenge to the exclusive male-female marital relationship in Baker v. Nelson, 409 U.S. 810 (1972) dismissing 291 Minn. 310, 191 N.W.2d 185 (1971).

But, in most cases, even controversial ones, the tribunal adheres to precedent. For example, the landmark Miranda v. Arizona case, 384 U.S. 436 (1966), decided during the heyday of the liberal-leaning Warren Court of the mid-1966, barring improperly-obtained confessions and establishing those well-known warnings to criminal suspects, was a target of conservative forces for years, especially because it was decided by a slender 5-4 margin. But, when the same issue resurfaced 34 years later in Dickerson v. United States, 530 U.S. 428 (2000), the high court reaffirmed it by a decisive 7-2 vote, with the majority decision written by Chief Justice William Rehnquist, no less, a longtime Miranda foe. He regarded the Miranda ruling, which he fought for years to limit or overturn, to be so deeply-engrained in the “national culture” to be impervious to dismantling.

Honored hallmark

As the Rehnquist ruling reflects, fidelity to following existing law is — or should be — a hallmark of the high court. It is a time-honored principle to which all of the jurists pay lip service, and sometimes more. For instance, a year before Roe, the court in Flood v. Kuhn, 407 U.S. 288 (1972) upheld a widely discredited 50-year old precedent in Federal Baseball Club v. National League, 259 U.S. 260 (1922), that major league baseball is not subject to antitrust laws, even though the author of the majority opinion, Minnesota’s Blackmun, again, thought the tenet unsound. Nevertheless, the jurist from St. Paul upheld the 5-decade-old precedent under the rubric of stare decisis, the hoary legal term supporting the maintenance of the status quo in the interpretation and application of the law.

In addition to following precedent, the formidability of the Roe decision may be grounded on the solid support it garnered at the time. Contrary to popular misconception, Roe was not one of those narrowly divided 5-4 liberal-versus-conservative decisions that characterized some rulings of that period and later ones. The Texas abortion proscription the Roe case was initially stricken by a federal court in the northern part of that state, 345 F. Supp. 1217 (N.D. Tex. 1970), hardly a bastion of liberalism. See, Whole Woman’s Health v. Hellerstedt136 S.Ct. 2292 (Jan. 27, 2016) (invalidating Texas abortion restrictions).

Furthermore, the Supreme Court vote was not close. Justice Blackmun’s majority decision was approved by six of his colleagues, a 7-2 vote. Even Chief Justice Warren Burger, another Minnesotan, and ardent conservative, joined in the ruling although with some expressed misgivings.

Thus, Roe v. Wade may be endangered, but it does not hang by as slender a reed as some might fearfully or hopefully surmise.

As for Minnesota, efforts to curb abortion rights have been limited to marginal matters, like minor restrictions, parental consent and waiting periods, significant issues but not life-threatening to reproductive rights advocates. Although Republicans now control both houses of the Legislature, they do not seem inclined to push new limitations and, even if they were, Gov. Mark Dayton would undoubtedly veto any attempts to curb reproductive rights. The next election cycle in 2018, however, may usher in renewed emphasis on abortion issues.

Consequently, both supporters and opponents of abortion rights face challenges and opportunities following the epic eight days in January.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Hellmuth & Johnson PLLC.


Some Minnesota Reversals of Precedent

  • Oanes v. Allstate Ins. (2006): Extending statute of limitations for uninsured motorist (UIM) claims;
  • Nieting v. Blondell (1976): Overruling sovereign immunity on tort claims;
  • Anderson v. Stream (1980): Allows intra-family tort suits;
  • Johnson vChicago Burlington, Quincy RR (1954): Overturns rejection of forum non conveniens for venue.

As originally published in Minnesota Lawyer.